Evicting defaulting tenants is a challenging yet sometimes necessary aspect of property management. When tenants fail to meet their rental obligations, landlords must navigate a complex legal landscape to regain possession of their property. This process involves understanding the legal grounds for eviction, adhering to proper notice requirements, and potentially engaging in court proceedings. In this article we will outline the requirements and provide an overview of the eviction process.
Prior To Eviction Proceedings In Court
If a tenant breaches any provision of a lease agreement, the homeowner must act according to the “Breach” clause.
This clause requires the homeowner to give the tenant written notice of the breach, allowing a certain period for the tenant to remedy it. According to the Consumer Protection Act 68 of 2009 (CPA), the landlord must give at least 20 business days’ notice for the tenant to rectify the breach before the agreement can be canceled.
In this notice, you should also mention that if the tenant does not address the problem, the lease agreement will be terminated.
If the tenant fails to remedy the breach within the specified timeframe, you can terminate the lease agreement and initiate the eviction process.
Two documents must be delivered to the Unlawful Occupants at the same time:
A) Notice Of Eviction
- Unlawful occupants must be notified of the homeowner’s intention to evict them. This notice warns the unlawful occupant of pending legal action and gives them 30 days to vacate the premises.
- An Ex-Parte application is filed in the Magistrate’s or High Court to authorize the service of a written notice, stating the owner’s intention to evict the occupant and informing the occupant of their rights in the eviction process.
- Ex-Parte means that the Court will grant the order (authorizing the Sheriff to deliver the demand/eviction notice) immediately and without the tenant’s prior knowledge.
- However, simultaneously with receiving authorization from the Court to serve the written notice, the main eviction application must be filed at the court and delivered to the tenant along with the Eviction Notice. This notice must be served before any further steps can be taken.
B) Eviction Application
The Eviction Application outlines the court order required and is supported by the Landlord’s Founding Affidavit. This affidavit must disclose all personal circumstances of the property occupants, including the number of occupants, presence of elderly persons or children, whether the household is headed by a woman, and any other relevant factors.
The occupant has 14 days to submit an Answering Affidavit, either opposing the application and explaining why they should not be evicted, or choosing to ignore the application or move out. The occupant’s response to the eviction application will provide an early indication of the likely outcome.
The Court Hearing
Fourteen days after the Notice of Eviction and the Eviction Application are delivered, the matter can be scheduled for a hearing. At the hearing, the Magistrate or Judge (in either the Magistrate’s Court or High Court) will decide whether to grant an eviction order and, if so, set a date by which the occupant must vacate the property.
Warrant of Ejectment
If the occupants do not vacate the property by the date specified in the eviction order, the homeowner can apply for a Warrant of Ejectment. The Sheriff of the Court will then be authorized to remove the occupant from the property. Obtaining a warrant and having the sheriff enforce the eviction may cause further delays. Since an occupant can vacate the property at any stage during the eviction process, costs can vary significantly.
Recovery of Unpaid Rent
The procedure for collecting arrear rent is a separate court application but can be initiated alongside and run concurrently with the eviction application.
Protection Against Illegal Evictions Act (PIE)
The PIE Act makes obtaining an eviction order time-consuming, during which the landlord may lose rent, incur property damage, and face legal costs. Therefore, landlord insurance is highly recommended.
Eviction Costs
The cost of an eviction can vary, especially if it goes to court. You will need to prepare for court costs, including the cost of the eviction notice and the sheriff’s fees for carrying out the eviction order. Additionally, attorney’s fees must be considered. If successful, you can sue the tenant for these costs, provided they have the resources to pay.
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